Biggins

On August 28, 1882, an information was filed in the superior court of Fresno county against Patrick Big-gins, charging him with having committed the crime of murder. Upon demurrer it was held to be defective, and, by direction of the court, a new information was filed, to which a demurrer was interposed, which was overruled, and the defendant then entered a plea of not guilty; hut upon the day fixed for trial, counsel for the people moved the court to set aside the order overruling the demurrer to the information and allow him to confess the same. The court granted the motion, and entered an order setting aside the overruling of the demurrer, and thereupon, as was recited in the order, counsel for the people confessed the demurrer, and the court directed another information to be filed. Upon the filing of the third information the defendant, after a demurrer to it had been overruled, entered two pleas—one not guilty and the other a former acquittal. Upon these he was tried and convicted of murder of the second degree.

In the course of the preliminary proceedings it was objected, and on appeal it is now objected: First, that after a plea of not guilty had been entered in the…

I concur in the judgment. The court below correctly charged that the law of involuntary manslaughter was inapplicable to the ease. The defendant was entitled to an instruction based upon the hypothesis that his testimony ivas true. But if his testimony was true, his act in striking the deceased—who held in his hand a bloody knife, three inches long, with which he had stabbed defendant at least twice—was not unlawful, but was an act of necessary self-defense. Involuntary manslaughter is the unlawful killing of a human being without malice, in the commission of an unlawful act, not amounting to a felony, or in the commission of a lawful act, which might produce death, in an unlawful manner, or without due caution or circumspection: Pen. Code, 192. Conceding the facts to be as stated by defendant, and the death to have been the result of a blow with *310 his fist, the killing was justifiable. It was done in resisting an attempt to murder or to do great bodily injury: Id. 197. It follows the court properly told the jury the law of involuntary manslaughter was not applicable to any phase of the evidence.

The court charged: “Insulting words, gestures, or actions will not reduce an…